Susan B. Anthony List v. Driehaus

134 S.Ct. 2334 (2014)

Summary

In June 2014, the U.S. Supreme Court held that a “credible threat of enforcement” is a sufficient threat of injury to establish standing in a First Amendment case, when bringing a “pre-enforcement” challenge.

Media Coalition filed an amicus brief in the case, asking the Court to reaffirm that those who have a “reasonable fear of prosecution” have standing to bring a pre-enforcement challenge, a standard that was established in the Media Coalition case Virginia v. American Booksellers Association. The Court cited the “reasonable fear of prosecution” standard as an acceptable formulation of the “credible threat of enforcement” standard.

History

Courts find Susan B. Anthony List lacks standing

The U.S. District Court for the Southern District of Ohio dismissed [3] a challenge by Susan B. Anthony List to a state law regulating speech in campaign advertising. The Court found the Susan B. Anthony List lacked standing to file a “pre-enforcement” challenge because it could not demonstrate that prosecution was likely or imminent. The court said, “Without enforcement action pending at any stage, a case or controversy does not exist.”

On May 13, 2013, the Sixth Circuit Court of Appeals affirmed [4] the district court’s decision to dismiss the lawsuit, saying neither past enforcement nor a chilling effect on speakers suffices to prove an “imminent threat of future prosecution,” and Susan B. Anthony List, therefore, cannot challenge the constitutionality of the statute.

Media Coalition files amicus brief

On March 3, 2014, Media Coalition submitted an amicus brief [2] in the case, asking the Supreme Court to reaffirm that those who have a well-founded fear of prosecution have standing to bring a pre-enforcement challenge to a censorship law in federal court.

In a Q&A, Media Coalition Executive Director David Horowitz explained that a pre-enforcement challenge is a critical tool for protecting free speech rights. “A bookseller or librarian may pull a book from the shelf if they fear that they may be prosecuted,” Horowitz said. “A pre-enforcement challenge allows a court to determine if a law violates the First Amendment before a bookseller or librarian pulls the book off the shelves or has been arrested for not pulling the book off the shelf.”

The standard of a “well-founded fear of prosecution” to determine standing in a pre-enforcement challenge was established by the Supreme Court in its 1988 decision in Virginia v. American Booksellers Association. That case has allowed Media Coalition to bring 22 additional challenges to censorship laws over the last 35 years. In all of those challenges, the statutes were either held unconstitutional or narrowed to comply with the First Amendment. The amicus brief argues that these cases could have been dismissed under the Sixth Circuit’s definition of standing.